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2023 DIGILAW 773 (ALL)

Sapna @ Sapna Choudhary v. State of U. P.

2023-03-21

AJAI KUMAR SRIVASTAVA I

body2023
JUDGMENT Ajai Kumar Srivastava-I, J. Heard Sri Keshav Prasad, learned counsel for the applicant and Sri Alok Saran, learned A.G.A. for the State. 2. This application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to quash the order dated 19.12.2022, passed by Additional Chief Judicial Magistrate, Room No.29, Lucknow in Case No.38118/2018, arising out of Crime No.621/2018, under Sections 406 & 420 I.P.C., Police Station Ashiyana, District Lucknow, whereby learned Additional Chief Judicial Magistrate, Room No.29, Lucknow has rejected the application of the present applicant for obtaining no objection certificate/permission regarding issuance of passport to the applicant. 3. It is submitted by learned counsel for the applicant that passport was issued to the applicant by Regional Passport Office concerned. The validity of the said passport was up to year 2018. Thereafter, the applicant sought renewal of the same by means of an application bearing no.DL4073359402219 dated 13.02.2019 before Regional Passport Office, Lucknow, Ministry of External Affairs, Government of India. On seeking status of the above application dated 13.02.2019 by the applicant, Regional Passport Office, Lucknow by letter dated 23.07.2019 gave reply to the applicant as under :- "1. A Criminal case is pending against you as per Police Verification Report. 2. Please furnish proof of clearance of the case and clarify in person at the Passport Office." 4. In view of above, the applicant filed an application dated 21.06.2021, in Case No.38118/2018, arising out of Crime No.621/2018, under Sections 406 & 420 I.P.C., Police Station Ashiyana, District Lucknow for obtaining no objection regarding renewal/re-issuance of passport. The said application of the applicant has been rejected by the Additional Chief Judicial Magistrate, Room No.29, Lucknow vide impugned order dated 19.12.2022. 5. Assailing the impugned order dated 19.12.2022 of the learned trial Court, learned counsel for the applicant, at very outset, has placed reliance on the order dated 02.09.2016, passed by co-ordinate Bench of this Court, in Criminal Revision No. 916 of 1988, which is reproduced herein below :- "Order on Application No. 223300 of 2016 Heard Shri G.S. Chaturvedi, learned Senior Advocate assisted by Shri Samit Gopal, learned counsel for the revisionist and Shri P.K. Srivastava, learned A.G.A. for the State. This application has been filed by the applicant-revisionist with the prayer to permit the applicant to travel to U.S.A. from 15.3.2017 to 30.9.2017 and then again from 1.5.2018 to 31.12.2018 and further give suitable directions for the renewal /re-issue of the passport No.-L 9152792 issued on 2.6.2014 from Ghaziabad. Learned counsel for the applicant-revisionist submits that he does not want to press the prayer for permission to travel from U.S.A. from 1.5.2018 to 31.12.2018 at this stage. Learned counsel for the applicant-revisionist submits that prior to this application, applicant had moved an application for permission to go to U.S.A. to meet his son and permission was granted to him by the trial court as well this court.It is further submitted that permission has been granted to the applicant vide order dated 7.4.2014 by this court to travel to U.S.A. from 15.5.2014 to 31.12.2014 without demanding any bond /sureties. Having considered the facts and circumstances of the case, I do not find any reasons to deny the liberty of the applicant-revisionist to go abroad and meet his family.The applicant-revisionist S.P. Mathur is permitted to go to U.S.A. from 15.3.2017 to 30.9.2017. It is open for the applicant-revisionist to take appropriate steps for renewal of his passport before the authority concerned in accordance with law. Accordingly the application is allowed." 6. Learned counsel for the applicant has also placed reliance upon the the notification dated 25.08.1993 of Ministry of External Affairs, Government of India, which is reproduced herein below :- "Ministry of External Affairs, Noti. No. G.S.R. 570(E), dated August 25, 1993, published in the Gazette of India, Extra., Part II, Section 3(i), dated 25th August, 1993, pp. 2-3, Sl. Learned counsel for the applicant has also placed reliance upon the the notification dated 25.08.1993 of Ministry of External Affairs, Government of India, which is reproduced herein below :- "Ministry of External Affairs, Noti. No. G.S.R. 570(E), dated August 25, 1993, published in the Gazette of India, Extra., Part II, Section 3(i), dated 25th August, 1993, pp. 2-3, Sl. No. 289 [No. VI/401/37/79] In exercise of the powers conferred by clause (a) of section 22 of the Passports Act, 1967 (15 of 1967) and in suppression of the notification of the Government of India in the Ministry of External Affairs No. G.S.R. 298(E), dated the 14th April, 1976, the Central Government, being of the opinion that it is necessary in public interest to do so, hereby exempts citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before a criminal court in India and who produce orders from the court concerned permitting them to depart from India, from the operation of the provisions of clause (f) of sub-section (2) of Section 6 of the said Act, subject to the following conditions, namely :- (a) the passport to be issued to every such citizen shall be issued - (i) for the period specified in order of the court referred to above, if the court specified a period for which the passport has to be issued; or (ii) if no period either for the issue of the passport r for the travel abroad is specified in such order, the passport shall be issued for a period of one year; (iii) if such order gives permission to travel abroad for a period less than one year, but does not specify the period of validity of the passport, the passport shall be issued for one year; or (iv) if such order gives permission to travel abroad for a period exceeding one year, and does not specify the validity of the passport, then the passport shall be issued for the period of travel abroad specified in the order; (b) any passport issued in terms of (a)(ii) and (a)(iii) above can be further renewed for one year at a time, provided the applicant has not travelled abroad for the period sanctioned by the court; and provided further that, in the meantime, the order of the court is not cancelled or modified. (c) any passport issued in terms of (a)(i) above can be further renewed only on the basis of a fresh court order specifying a further period of validity of the passport or specifying a period for travel abroad; (d) the said citizen shall give an undertaking in writing to the passport-issuing authority that he shall, if required by the court concerned, appear before it at any time during the continuance in force of the passport so issued." 7. On the strength of aforesaid notification dated 25.08.1993, much emphasis has been laid by the learned counsel for the applicant by contending that in view of the aforesaid notification dated 25.08.1993 issued by the Central Government, it is clear that the citizens against whom criminal cases are pending are made exempt from the operation of Section 6(2)(f) provided they produce orders from the concerned Court permitting them to travel abroad subject to the terms and conditions mentioned in the notifications. In other words, an application of passport is not liable to be refused on the ground of pendency of criminal case if the applicant obtains permission from the concerned Criminal Court for travelling outside India and there is no statutory bar for the trial court to according no objection. 8. It is further submitted by the learned counsel for the applicant that the applicant is a renowned singer, actor and performer and has earned a lot of love and respect from the world at large. The applicant earns her livelihood by performing her art in India and abroad and passport becomes highly necessary document for her livelihood. The applicant has been wrongly and falsely implicated in Case No.38118/2018, arising out of Crime No.621/2018, under Sections 406 & 420 I.P.C., Police Station Ashiyana, District Lucknow. 9. In the above pending criminal case, the applicant is already on bail. It is submitted that, though the criminal case pending against the present applicant is petty in nature, but now a days such criminal cases are also take a long time to be decided finally and till then it will not be proper either to withhold no objection or to refuse the renewal/reissue of passport to the applicant. He further submitted that in case applicant, is acquitted in future, then loss, which the applicant may suffer by not going abroad for the purpose of his professional work can not be compensated in any manner. He further submitted that in case applicant, is acquitted in future, then loss, which the applicant may suffer by not going abroad for the purpose of his professional work can not be compensated in any manner. Such refusal also infringes the applicant's constitutional right available to her under Article 19 & 21 of the Constitution of India. 10. Learned counsel for the applicant also undertakes before this court that the present applicant is ready to give undertaking before the trial court within three weeks from the date of passing of this order that she will not leave India without prior permission of the trial court and she shall also appear on each dates before the trial court in a criminal case pending against her. 11. Per contra, learned A.G.A. for the state has vehemently opposed the prayer by submitting that according to Section 6(2) (f) of the Passport Act, learned Magistrate has rightly and legally passed the impugned order dated 19.12.2022. The application of the applicant is liable to be dismissed. 12. Having regard to submission made by learned counsel for the applicant, learned A.G.A. and upon perusal of the record, it will be useful to state briefly the legislative background of the Act before considering the relevant provisions of Section 6(2)(f). 13. The Passport Act, 1967 was enacted on 24th June, 1967 in view of the decision of the Supreme Court in the case of Satwant Singh Sawhney v. V.D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi, AIR 1967 SC 1836 . Prior to coming into force of The Passport Act, 1967 (Act No. 15 of 1967) there was no law in India regulating the issue of passport for leaving India and going abroad. The issue of passport was entirely within the discretion of the executive and this discretion was unguided and unchallenged. In Satwant Singh Sawhney's case (supra) the Supreme Court by a majority held that the expression 'personal liberty' in Article 21 of the Constitution includes the right to travel abroad and under Article 21 no person can be deprived of his right to go abroad except according to the procedure established by law, and since no law had been made by the State regulating or prohibiting the exercise of that right, the refusal to issue a passport was in violation of Article 21 of the Constitution. It was held by the Supreme Court that the discretion with the execution in the matter of refusing or issuing a passport being unchanneled and arbitrary, it was plainly violative of Article 14 of the Constitution and hence the order refusing passport to the petitioner was also invalid under that Article. This decision was accepted by the Parliament and the infirmity pointed out by it was set right by enactment of the Passport Act. Section 6(2) of the said Act lays down 9 separate grounds on which the passport authority can refuse to issue, inter alia, a passport. By virtue of Section 8, the same grounds apply to a case for renewal of passport. Therefore, by virtue of the said Section 6(2) read with Section 8 of the said Act, it is made obligatory for the passport authority to refuse to renew the passport if one out of nine grounds mentioned in Section 6(2) is present. 14. The Hon'ble Supreme Court also considered the constitutional validity of some of the provisions of the Passport Act in the land-mark case of Maneka Gandhi v. Union of India, AIR 1978 SC 597 and held that the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. Such procedure must be right and just and fair and not arbitrary, fanciful or oppressive, otherwise, it will be no procedure at all and the requirement of Article 21 would not be satisfied. The decision of the Hon'ble Supreme Court in Meneka Gandhi (Supra) was delivered on 25th January, 1978. After the Supreme Court judgment of Maneka Gandhi's case, the Central Government in exercise of the powers conferred by clause (a) of Section 22 of the said Act, issued a notification dated 16th August, 1979 exempting citizens of India against whom proceedings in respect of an offence alleged to have been committed by them are pending before any criminal Court in India and who produce orders from the Court concerned permitting them to depart from India, from the operation of the provisions of the clause (f) of sub-section (2) of Section 6 of the Act. 15. By the notification dated 25th August, 1993, the earlier notification was substituted. 15. By the notification dated 25th August, 1993, the earlier notification was substituted. Here reference is required to be made to Sections 5 and 6 of the Passport Act, which is quoted herein below :- "Section 5 : Applications for passports, travel documents, etc., and orders thereon : (1) An application for the issue of a passport under this Act for visiting such foreign country or countries (not being a named foreign country) as may be specified in the application may be made to the passport authority and shall be accompanied by (Such fee as may be prescribed to meet the expenses incurred on special security paper, printing, lamination and other connected miscellaneous services in issuing passports and other travel documents). Explanation.- In this section, "named foreign country" means such foreign country as the Central Government may, by rules made under this Act, specify in this behalf. (1A) An application for the issue of- (i) a passport under this Act for visiting a named foreign country; or (ii) a travel document under this Act, for visiting such foreign country or countries (including a named foreign country) as may be specified in the application or for an endorsement on the passport or travel document referred to in this section, may be made to the passport authority and shall be accompanied by such fee (if any) not exceeding rupees fifty, as may be prescribed. (1B) Every application under this section shall be in such form and contain such particulars as may be prescribed.] (2) On receipt of an application [under this section], the passport authority, after making such inquiry, if any as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing,- (a) issue the passport or travel documents with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of the foreign country or countries specified in the application; or (b) issue the passport or travel document with endorsement, or, as the case may be, make on the passport or travel document the endorsement, in respect of one or more of the foreign countries specified in the application and refuse to make an endorsement in respect of the other country or countries; or (c) refuse to issue the passport or travel document or, as the case may be, refuse to make on the passport or travel document any endorsement. (3) Where the passport authority makes an order under clause (b) or clause (c) of sub-section (2) on the application of any person, it shall record in writing a brief statement of its reasons for making such order and furnish to that person on demand a copy of the same unless in any case the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public to furnish such copy. Section 6 : Refusal of passports, travel documents etc.- (1) Subject to the other provisions of this Act, the passport authority shall refuse to make an endorsement for visiting any foreign country under clause (b) or clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and no other ground, namely: - (a) that the applicant may, or is likely to, engage in such country in activities prejudicial to the sovereignty and integrity of India: (b) that the presence of the applicant in such country may, or is likely to, be detrimental to the security of India; (c) that the presence of the applicant in such country may, or is likely to, prejudice the friendly relations of India with that or any other country, (d) that in the opinion of the Central Government the presence of the applicant in such country is not in the public interest. (2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely : - (a) that the applicant is not a citizen of India., (b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India., (c) that the departure of the applicant from India may, or is likely to, be detrimental to the security of India; (d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country; (e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years; (f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India; (g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court; (h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation; (i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest." 16. The object behind incorporating clause (f) as one of the grounds for refusal of the issuance of Passport appears to be that permitting a person facing criminal charges to go abroad is against the interest of the society at large as the same may be an impediment in conducting any enquiry or investigation or trial against such person. The restriction under Section 6(2)(f) of the Passport Act does not absolute rather the same can be relaxed in appropriate case with the permission of the court in which the criminal proceedings are pending. The restriction under Section 6(2)(f) of the Passport Act does not absolute rather the same can be relaxed in appropriate case with the permission of the court in which the criminal proceedings are pending. Considering all aspects of the matter, the provisions of Section 6(2)(f) of the Passport Act, 1967 is neither violative of the equality before law clause nor violative of equal protection of law clause enshrined in Article 14 of the Constitution of India. 17. A careful reading of aforesaid provisions of the Passport Act and notification dated 25.08.1993 in the light of it's legislative backgrounds as mentioned above, it is clear that passport or travel document of a person, who is facing trial can be refused by the authority concerned during pendency of her/his criminal case, but there is no statutory bar for giving no objection by the court concerned. No hard and fast straight jacket formula can be laid down regarding issuance of permission or giving no objection by the court concerned. It is always discretion of the court concerned and depend upon the facts and circumstances of each case, act and conduct of the accused as well as nature of alleged offence committed by him and stage of trial, etc. Some time on account of enmity or ill will one party enmesh the other party in a frivolous criminal case to settle his personal score, therefore, in the interest of justice, it is necessary to consider all aspects of the matter and surrounding circumstances while granting or refusing the no objection for renewal or reissue of passport or travel documents by the court concerned. 18. In the case at hand, allegation and charges levelled against the applicant by the complainant can not be said to be grave or henious in nature. The criminal case against the present applicant is also not related to public importance at large. The applicant is already on bail, therefore, considering the facts of this case and nature of allegation against the applicant, this Court, on the basis of available record, finds that applicant has made out a case for allowing this application. 19. The criminal case against the present applicant is also not related to public importance at large. The applicant is already on bail, therefore, considering the facts of this case and nature of allegation against the applicant, this Court, on the basis of available record, finds that applicant has made out a case for allowing this application. 19. In view of the aforesaid undertaking given by the applicant before this Court and considering the nature of offence against the applicant as well as overall facts and circumstances of the case, the impugned order dated 19.12.2022, passed by Additional Chief Judicial Magistrate, Room No.29, Lucknow in Case No.38118/2018, arising out of Crime No.621/2018, under Sections 406 & 420 I.P.C., Police Station Ashiyana, District Lucknow deserves to be quashed and is hereby, quashed. 20. The application is disposed of with following directions :- (i) Applicant shall submit her undertaking along with her affidavit within three weeks from the date of this order before the trial court concerned clearly mentioning that she will not leave India during pendency of his trial without prior permission of the trial court and she shall appear in the trial before the trial court as and when so directed by the trial Court. (ii) In case the aforesaid undertaking is filed by the applicant as directed above, the trial court on demand by the applicant shall issue certified copy of undertaking given by the applicant within a week to her. (iii) The applicant shall move a fresh application along with certified copy of this order and her aforesaid undertaking before the Passport Officer/authority concerned for renewal or reissue of her passport, as the case may be. (iv) In case such application is moved by the applicant, the Passport Officer/authority concerned considering the case of the applicant afresh in the light of observation made by this Court in this order as well as contents of undertaking of the applicant, shall decide the application of the applicant in accordance with law within three weeks from the date of moving application by the applicant.